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2018 (8) TMI 124 - AT - Income TaxReopening of assessment - addition invoking the provisions of section 41(1) - Held that:- Here we find that in the reasons recorded it has been clearly mentioned that there has been a waiver of loan amounting to ₹ 7,00,66,000/- and the same is assessable as income which has not been assessed as such. Hence on the touch stone of Hon’ble Apex Court decision in the case of Kelvinator of India Ltd. (2010 (1) TMI 11 - SUPREME COURT OF INDIA) it can be clearly said that there is a tangible material for the Assessing Officer to come to the conclusion that there is an escapement of income from business. Hence, the reasons do have a live link with the formation of the belief. As regards the merits of the case, we find that the assessee had raised additional evidences and additional ground. In an affidavit mentioned above, it has been said that the amount raised from ECB (External Commercial Borrowing) were utilized mainly to repay the loan from financial institutions. The loan agreement itself mentions that the ECB loan was for general funding requirement. Now the assessee is making a U-turn and claiming that the said loan was utilized to pay off earlier financial institutions loans which in turn were used for acquisition of capital asset. In this regard, we note that firstly these submissions and documents were not before the authorities below. In our considered opinion, they need to be verified with reference to the original records as to whether the claim of the assessee as above is correct or not. It is only after that that it has to be considered as to whether the new claim of the assessee that the said ECB loan was used for capital purposes, can be entertained.Upon careful consideration, in the interest of justice, we remit the issue to the file of the Assessing Officer. The Assessing Officer shall consider the issue afresh after giving a factual finding regarding the veracity of the assessee’s new claim mentioned hereinabove. - Decided partly in favour of assessee for statistical purposes.
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